Statement on H.R. 2837: The Naturalization Reform Act of 1998

By Rosemary Jenks March 1998

Statement on H.R. 2837
The Naturalization Reform Act of 1998

Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
March 5, 1998

Mr. Chairman and Members of the Subcommittee, I am Rosemary Jenks, a Senior Fellow at the Center for Immigration Studies. The Center is a non-profit, non-advocacy research institution that studies immigration policy and its impact on the United States. I appreciate the opportunity to appear before you again to discuss the naturalization process. Because the Center is a non-advocacy organization, it neither endorses nor opposes any particular legislative proposal. Thus, the focus of my statement is the general need for reform of the naturalization process and the effect that H.R. 2837, the Naturalization Reform Act of 1998, would have on meeting that need.

United States citizenship is the most valuable and the most cherished privilege our nation can bestow upon an individual. It carries with it the right to travel freely, to hold certain public offices and to petition for the immigration of family members. Most importantly, however, it carries with it the right, and the responsibility, to take part in shaping and securing the future of this country by voting for elected officials at all levels of government.

Over the past year and a half, congressional investigations and independent audits of the naturalization process have found that processing errors, lack of adequate training and, in many cases, the blatant disregard of eligibility requirements resulted in thousands of statutorily ineligible criminal aliens, along with tens of thousands of potentially ineligible aliens, being naturalized over a 13-month period in 1995 and 1996. These reports have outraged the American people, and justifiably so.

What many Americans do not realize, however, is that most of the underlying problems with the naturalization process have existed for years. The General Accounting Office, for example, reported in February of 1994 that the INS process for weeding out criminals was badly flawed. Unfortunately, the INS failed to correct those problems until after the Citizenship USA program had seriously exacerbated them and brought them to the public's attention.

Since the fall of 1996, the INS has made several administrative changes in the naturalization process. These include requirements that INS officials review fingerprint cards to ensure that they are complete and legible before they are submitted to the FBI; that no applicant be naturalized until the INS receives a definitive response from the FBI regarding the criminal history background check; that field offices research any incomplete or inconclusive criminal history data provided by the FBI; that all decisions to approve applicants with a criminal history be reviewed by a supervisory officer; and that INS officials verify that applicants are not in removal proceedings or subject to removal orders. These requirements, if strictly enforced, should solve many of the systemic flaws in the process.

In my view, however, the long-standing nature of many of the weaknesses in the naturalization process underlines the need for statutory reform. Unlike administrative reforms, which could be undercut by future Commissioners or administrations, statutory reforms send a clear message to all INS employees that the rules have changed permanently and that they may be held accountable if they fail to enforce those rules. Statutory reforms have the added benefit of sending a message to the American public and prospective U.S. citizens that this Congress will not tolerate the devaluation of U.S. citizenship that results from lax enforcement of the eligibility requirements for naturalization.

I believe that H.R. 2837 would satisfy the need for statutory reforms and send the right message both to the INS and to the American people. It is comprised largely of common-sense provisions that should be fairly non-controversial. For example:

* Section 2 of the bill bars from naturalization aliens who are in removal proceedings, subject to an outstanding removal order, or deportable for criminal violations. Current law already prohibits the INS from naturalizing aliens who are in removal proceedings or subject to an outstanding removal order (Sec. 318 of the INA). Common sense would dictate that aliens who are deportable for committing crimes, but have not yet had Orders to Show Cause issued against them simply because their criminal convictions did not come to the attention of the INS prior to their application for naturalization, should not be eligible for U.S. citizenship.

* Section 4 requires the INS to conduct an investigation of an applicant's criminal history, including criminal offenses listed on the FBI rap sheet, criminal offenses listed in INS databases, and any other criminal offenses of which the INS has knowledge. One of the biggest obstacles that auditors of the Citizenship USA program had to overcome was the fact that the FBI rap sheets often are incomplete and/or inconclusive. In many cases, the rap sheets list charges against an individual, but not whether the individual was actually convicted of those charges. Moreover, local police departments do not always notify the FBI of criminal convictions. This section of the bill, therefore, not only allows the INS to better enforce the prohibitions against naturalizing criminals and those lacking good moral character, it also serves to protect applicants who may have been charged with crimes, but later acquitted. I would also note that current law already requires the INS to conduct investigations of naturalization applicants' residential neighborhoods and business activities to verify good moral character and other eligibility requirements, unless such investigation is waived by the Attorney General (Sec. 335 of the INA). While clearly justifiable, this latter requirement is substantially more intrusive than the investigation requirement set out in H.R. 2837.

* Section 4 exempts from the FBI fingerprint check applicants who are physically unable to provide legible fingerprints. An alien who is unable to provide legible fingerprints because his or her prints are too fine or are worn down should not be barred from naturalization for that reason alone. A criminal history check based on a person's name is less definitive than a fingerprint check, but this exception would apply only to a tiny fraction of applicants, and so would not damage the integrity of the overall process.

* Section 7 directs the Attorney General to develop a master list of questions to be used to test English ability and knowledge of U.S. history and civics. This standardization of the citizenship test would make it more fair and less dependent on the moods or biases of test administrators. I would hope, however, that the Attorney General would consult with a variety of government and nongovernment sources in developing such a list, since the INS has been accused in recent years of "watering down" the citizenship test.

* Section 8 establishes a civil penalty for failing to report the loss, theft or destruction of resident alien cards. Considering the huge fraudulent document industry in this country, it seems reasonable to require aliens to report missing "green cards" as soon as they are discovered missing. This provision also should make it easier to identify aliens who are using stolen or lost "green cards," since the INS will have a record of those cards.

You may remember that I appeared before this Subcommittee last April to recommend changes to the naturalization process. One of the concerns I voiced was that the INS is unable to ensure the integrity of those parts of the naturalization process that it delegates to outside entities, such as fingerprinting and citizenship testing.

The FY 1998 Commerce, Justice and State Appropriations Act, passed last fall, specifies that the INS may not use any of its funding to process fingerprint cards prepared by any entity other than an office of the INS, state and local law enforcement agencies, or the Departments of State and Defense. Section 4 of H.R. 2837 includes a similar provision. It would allow any of these entities to prepare fingerprints, but adds that the INS may hire a single contractor to conduct fingerprinting services at INS facilities and under the supervision of INS personnel.

H.R. 2837 also addresses the ongoing problems with fraud in the citizenship testing program. Section 7 requires that all citizenship tests be administered by the INS or by personnel provided by a single contractor hired by the INS to administer the tests at INS facilities and under the supervision of INS personnel.

I believe that these two provisions would adequately ensure the integrity of both the fingerprinting and the citizenship testing programs, while still allowing the INS to contract out some of this work, thus easing the workload of already-overburdened INS employees.

I noted earlier that most of the provisions in H.R. 2837 should be non-controversial. The two sections of the bill that I assume will generate the most controversy are Section 3 and parts of Section 9. Section 3 doubles the period during which a naturalization applicant must show that he or she has been a person of good moral character. Under current law, this period includes the five years immediately preceding an application for naturalization; H.R. 2837 extends it to the ten years immediately preceding an application. I would point out, however, that current law does not, in fact, limit the good moral character period to five years, but rather establishes five years as the minimum period during which an applicant must show good moral character. The law states that:

In determining whether the applicant has sustained the burden of stablishing good moral character...the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration...the applicant's conduct and acts at any time prior to that period. (Sec. 316(e) of the INA)

Moreover, it is my understanding that this provision would not require the INS to investigate an applicant's criminal history in the country of origin, if such applicant had resided in the United States for less than 10 years. Rather, it would mean that any crimes committed by the applicant during the 10-year period which come to the attention of the FBI or the INS would be taken into consideration in determining eligibility for naturalization--regardless of whether the crimes were committed here or abroad. I would guess that only the most serious crimes committed abroad (e.g., those where extradition is sought) would ever come to the attention of the FBI or the INS. Therefore, this provision neither places an additional burden on INS or FBI investigators, nor requires anything that is not allowed under current law. In this light, Section 3 of H.R. 2837 does not seem as controversial as at first glance.

Section 9 of the bill deals with the revocation of citizenship. Specifically, it establishes a rebuttable presumption that a naturalization applicant who concealed or misrepresented a material fact did so willfully, and it extends from two years to five the statute of limitations for administrative denaturalization. I would guess that these provisions were included in H.R. 2837 in response to: 1) the INS's hesitation in attempting to denaturalize persons who perjured themselves by failing to report criminal convictions or immigration violations, even though such convictions or violations may not have made them statutorily ineligible for naturalization; and 2) the extremely slow rate of progress of the INS in denaturalizing the thousands of people who were wrongly naturalized during the Citizenship USA program.

Because current law does not clarify the burden of proof in establishing "willful" concealment or misrepresentation, it likely would be difficult for the INS to revoke administratively the citizenship of all those who failed to provide complete and accurate information on their applications. The provision in H.R. 2837 clearly would facilitate revocation of citizenship on the basis of perjury. I would argue that such a rebuttable presumption of willfulness is reasonable--it is difficult for me to conceive of circumstances in which an individual would be unaware of or have forgotten being arrested, charged with a crime, convicted, or placed in removal proceedings, or failing to pay income taxes or child support, etc.

As for the extension of the statute of limitations on administrative denaturalization, I would hope that, in the vast majority of cases, the INS would act to revoke citizenship within two years. However, events of the past year and a half have demonstrated that the INS is unable to move quickly on denaturalization cases when it has a backlog of thousands of such cases. For those wrongly naturalized in late 1995, the current two-year statute of limitations has already expired. Such individuals against whom the INS has not initiated administrative denaturalization proceedings have successfully defrauded the system, unless a decision is made to initiate the more costly and drawn-out judicial denaturalization proceedings.

The provisions in H.R. 2837 to which I have not referred specifically codify already-existing INS policies and regulations. These provisions should not be controversial, as they are already being implemented.

In addition to the concerns I voiced last April regarding the integrity of the fingerprinting and citizenship testing programs, I also recommended three general reforms in the naturalization process. These were:

* That the INS update and integrate its computer systems to facilitate status checks and ease the problems the agency has with locating paper files on a timely basis;

* That the INS prioritize its electronic fingerprint pilot program and expand the use of electronic fingerprint scanners; and

* That the INS ensure that its employees are properly trained in all aspects of the naturalization process, including eligibility requirements, paperwork processing, computer status checks and interview techniques.

While these issues are not addressed in H.R. 2837, they were addressed in the FY 1998 Commerce, Justice and State Appropriations Act. Specifically to address problems in the naturalization process, that Act directs the INS to reallocate funds from the examinations fees account to provide the following:

* an additional $11.1 million to improve records infrastructure, $4.8 million to support records contracts in district offices, $5.2 million to modify the CLAIMS computer system to support naturalization case processing, and $1.25 million to enhance the Central Index System;

* an additional $16.8 million for the purchase and installation of electronic fingerprint scanners, with a total increase of $67 million to cover all fingerprinting requirements; and

* an additional $11 million for quality assurance staff to oversee processing of naturalization applications and to provide for continued auditing of procedures, and almost $33.2 million to provide for uniform paperwork processing through the Direct Mail system.

It is my view that the provisions in H.R. 2837, when combined with the provisions of this Appropriations Act, should meet the needs for reform of the naturalization process and ensure that the results of the Citizenship USA program are never repeated.

I would be happy to answer any questions you may have.